South Africa’s constitution allows for laws to be passed that recognise religious and traditional marriages as well as personal and family law systems. These are systems that regulate marriage, divorce, matters affecting children - including guardianship, custody, access, maintenance and inheritance.

This is a radical departure from the colonial and apartheid era when South Africa’s common law definition of marriage was seen simply as a union between one man and one woman. In other words, a legal marriage in South Africa was characterised by heteronormativity and monogamy. Same-sex marriages and potentially polygynous marriages were excluded from the legal definition of marriage. This affected African customary marriages, Muslim marriages, Jewish marriages and Hindu marriages, which are all potentially polygynous.

The situation changed in the post-1994 democratic era. A law was passed in 1998 that afforded African customary marriages full legal recognition. And the Civil Union Act made marriages between same-sex couples legally possible.

Yet, potentially polygynous marriages such as Muslim marriages, Hindu marriages and Jewish marriages have not yet been afforded legal recognition. This failure is tantamount to saying that religious marriages are inferior and less deserving of legal protection. It infringes the rights to dignity, freedom of religion and equality of spouses in religious marriages and children born within those marriages.

Women are particularly badly affected. Take the case, for instance, of a Muslim wife who has a substantially smaller estate than her husband. She could be left financially destitute should the marriage end in divorce. Yet, she has no recourse under South African law because her marriage is not legally recognised.

Muslim women are also at a disadvantage because polygyny isn’t regulated. This means that men can enter into subsequent marriages without their knowledge. Women also have difficulty accessing a Muslim divorce even though their right to divorce is recognised under Islamic law. This results in them being held hostage in unwanted marriages.

The fact that the absence of laws pertains to minority religions in South Africa – Muslims make up 2% of South Africa’s population, Hindus 1% and Jews 0.2% – is no excuse for the failure of government to protect them.

This article deals mainly with the challenges facing Muslim women, which is the subject of a court challenge.

Working for equality

There have been numerous efforts to afford recognition to Muslim marriages. None, however, have been successful.

The first was in 2003 when the South African Law Reform Commission submitted the Muslim Marriages Bill to the Ministry of Justice and Constitutional Development.

The bill followed substantive consultations with the Muslim community and civil society. But it was viewed as unIslamic by some clergy which meant it was shelved.

This was followed by an attempt on the part of the Commission on Gender Equality and the Department of Justice and Constitutional Development, which drafted the Recognition of Religious Marriages Bill. The bill recommended recognition of all religious marriages. There were no considerable consultations around the bill which meant that it didn’t elicit much support.

Muslim wives are unfairly discriminated against in divorce.Reuters/Mike Hutchings

After years of inaction, a concerted campaign by a civil rights group, the Womens’ Legal Centre Trust led to the Department of Justice and Constitutional Development finally turning its attention to the Muslim Marriages Bill. In 2010, an amended version of the bill was approved by cabinet. This meant that it could enter the parliamentary process.

But this has still not happened. The Ministry of Home Affairs appears unwilling to table the bill because there’s less support for it – changes were made without consultation with the Muslim community – as well as the fact that it flouts the commitment to gender equality under the constitution. For example, the bill does not afford equal rights to divorce between Muslim women and men, to the disadvantage of women.

Lack of support for the amended bill may appear to be a reasonable justification for not pursuing it in parliament. But it does not explain the delay in enacting the bill prior to 2010 when the 2003 version of the bill appeared to have support among many of the Muslim clergy.

The delay may point to a lack of political will on the part of government.

Challenges

The legislative options on the table would ensure women were better protected. But they also pose challenges.

The recommendation by the Recognition of Religious Marriages Bill for self-regulation of religious marriages means that existing discriminatory religious rules and practices could be allowed to continue within religious communities.

At the same time, the bill’s recommendation that dissolution of religious marriages must be regulated through the Divorce Act could ensure formal equality between spouses. Yet, it might not engender substantive equality since it wouldn’t regulate existing discriminatory religious divorce rules and practices.

While Muslim, Hindu and Jewish wives could obtain a civil divorce through the bill, they may be constrained from getting a religious divorce. They would therefore be deemed to still be married under religious law thus preventing them from concluding further religious marriages. Yet, their husbands would be able to enter subsequent marriages due to the polygynous nature of their religious marriages.

In contrast, the Muslim Marriages Bill recognises existing Muslim rules and practices, including discriminatory ones. But it purports to regulate them in a way that affords protection to women. For example, the bill proposes to regulate polygyny in accordance with the Qur’anic precept of equality and requires existing wives to be notified of their husbands’ intention to marry again.

The bill further purports to regulate a man’s right to arbitrarily divorce his wife by requiring him to follow due process. Moreover, the bill recognises various forms of Muslim divorce including those available to women under Islamic law. If enacted, it would allow women to enforce Islamic law rights that they are presently unable to access.

The bill, therefore, potentially offers more protection for women than they otherwise have as a result of non-recognition of their Muslim marriages.

Challenging injustice

The Women’s Legal Centre Trust has again launched an application asking the Western Cape High Court to compel government to recognise Muslim marriages. The matter has been set down for 28 August 2017.

This is an unprecedented case and its outcome will have far-reaching consequences.

Will the judiciary have the courage to act where government has thus far failed?